Citation Nr: 0529305
Decision Date: 11/02/05 Archive Date: 11/14/05
DOCKET NO. 02-12 958 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to service connection for asthma, to include
the question of timeliness of the substantive appeal.
2. Entitlement to service connection for heart problems, to
include the question of timeliness of the substantive appeal.
3. Entitlement to an initial disability rating in excess of
30 percent for post-traumatic stress disorder (PTSD) for the
period prior to January 2, 2003.
4. Entitlement to a rating in excess of 70 percent for PTSD
for the period from January 2, 2003.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Jason A. Lyons, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1965 to
September 1967.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from June 2002 and June 2004 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Hartford, Connecticut. The June 2002 rating
decision granted service connection and assigned an initial
10 percent rating for PTSD, effective May 14, 2001; and
denied service connection for bilateral hearing loss. The
veteran filed a timely appeal of the June 2002 decision,
including with the initial assigned rating for his service-
connected psychiatric disability. The RO has since granted
service connection for bilateral hearing loss, and so that
issue is no longer before the Board for appellate
consideration. See generally Grantham v. Brown, 114 F.3d
1156 (1997).
Thereafter, in its August 2002 decision, the RO increased to
30 percent the initial rating for PTSD, and assigned an
earlier effective date for the grant of service connection
for this disability of April 27, 2001. In January 2003, the
veteran provided testimony during a hearing before RO
personnel, and a transcript of the proceeding is of record.
In October 2003, the RO granted a 70 percent rating for PTSD,
effective January 2, 2003.
Since the veteran's claims for increase each involve requests
for a higher initial rating following the grant of service
connection, the claims must be adjudicated in accordance with
Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a
veteran appeals his initial rating, VA must consider whether
he is entitled to a "staged" rating to compensate him for
times since filing his claim when his disability may have
been more severe than at others). Moreover, while the RO has
increased the rating for PTSD in two instances during the
pendency of the appeal, the veteran has continued his appeal,
requesting even higher ratings. See A.B. v. Brown, 6 Vet.
App. 35, 39 (1993) (the veteran is presumed to be seeking the
highest possible rating for a disability unless he expressly
indicates otherwise).
In September 2005, the veteran testified at a videoconference
hearing before the undersigned Acting Veterans Law Judge
(VLJ) of the Board. A transcript of that proceeding has been
associated with the claims file.
Also, in a June 2004 rating action the RO denied service
connection for asthma, and for heart problems. In December
2004, the veteran filed a Notice of Disagreement (NOD) with
this decision, and in April 2005 the RO issued a Statement of
the Case (SOC). During the Board hearing, the veteran stated
that he wished to pursue both of these claims in connection
with his appeal. However, as indicated at the hearing, a
review of the claims file raises a preliminary question of
whether the veteran has submitted a timely substantive appeal
regarding these issues. The Board has accordingly
characterized those two claims in light of the question of
timeliness.
For the reasons discussed below, this case is being REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC. VA will notify you if further action is
required on your part.
As a final preliminary matter, the Board notes that the
veteran, through recent correspondence and his September 2005
hearing testimony, has indicated that his service-connected
PTSD, along with other physical ailments, has significantly
impaired his ability to function in an occupational
environment. He has not alleged that he is unable to work as
a result of his psychiatric disability or any other
condition. However, the veteran is advised that if he does
intend to file a claim for a total disability rating based on
individual unemployability due to one or more service-
connected disabilities, he should contact the RO in reference
to this matter.
REMAND
With regard to the veteran's claims for an initial rating
higher than 30 percent for PTSD for the period prior to
January 2, 2003, and for a rating higher than 70 percent for
the period from January 2, 2003, the Board notes initially
that the veteran has submitted a January 2003 VA
psychologist's report indicating that he had applied for
Social Security Administration (SSA) disability benefits as a
result of his PTSD symptoms. Thereafter, during the
September 2005 hearing, the veteran testified that his
application for SSA benefits had since been denied. VA's
duty to assist requires that the records pertaining to the
veteran's SSA application be obtained, because such records
may contain evidence relevant to the severity of his
psychiatric disability. See Murincsak v. Derwinski, 2 Vet.
App. 363 (1992); Masors v. Derwinksi, 2 Vet. App. 181 (1992).
Thus, the RO should obtain all relevant SSA records
(including a copy of the SSA administrative decision and
supporting medical records), and associate them with the
claims file, in accordance with 38 C.F.R. § 3.159(c) (2004)
for requesting records from Federal facilities.
The RO must also attempt to obtain any additional VA
treatment records that are pertinent to the claims. Thus
far, the claims file includes records from VA medical
facilities associated with the Connecticut Health Care System
(HCS) dated March 1998 to February 1999, and January 2003 to
April 2004, and from the Norwich Vet Center dated from April
2001 to October 2001. Hence, there is a likelihood that
additional medical records are available from February 1999
up until January 2003 from the Connecticut HCS, as well as
more recent records from both of the above facilities. As VA
has notice of the possible existence of such records and
their possible relevance to this appeal, they must be
obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992).
Additionally, the veteran most recently underwent VA
examination for his service-connected psychiatric disability
in May 2002. The evidence received since then includes a
January 2003 psychologist's report noting a worsening in the
veteran's PTSD symptoms, which provided the basis for the
RO's grant of a higher 70 percent rating, effective January
2, 2003. The veteran has also alleged that he has since
undergone treatment for further psychiatric symptoms not
previously noted on examination. Given that the last
examination was over 3 years ago, and the evidence of a
possible worsening in his overall disability, the Board finds
that another examination is warranted. See Caffrey v. Brown,
6 Vet. App. 377 (1994).
Pertinent to the claims for service connection for asthma and
for heart problems, as indicated above, there is a
preliminary question as to whether the veteran has filed a
timely substantive appeal concerning these issues. The RO
denied each service connection claim in a June 2004 rating
decision, and notified the veteran of this decision later
that month. In December 2004, the veteran submitted a Notice
of Disagreement with that determination. The RO then issued
a Statement of the Case in April 2005 that addressed the
claims for service connection, at which time the veteran was
advised that he had until the later of 60 days from the date
of the Statement of the Case or the remainder of the one-year
period from the date of notice of the decision appealed in
which to perfect his appeal.
The veteran did not send any correspondence to the RO or take
any further action with regard to the above claims for
service connection, until during the September 2005 Board
hearing when he stated that he was continuing to pursue the
claims and also provided testimony on the merits of the
claims. In October 2005, the RO received a statement from
the veteran reiterating his viewpoint that his claimed asthma
and hypertension (claimed as a "heart problem") were
related to service-connected PTSD, along with copies of
medical journal articles in support of this contention.
However, there is no indication that the veteran at any point
filed a VA Form 9 or other document within the requisite time
frame that may be construed as a timely substantive appeal.
The United States Court of Appeals for Veterans Claims
(Court) has held that, unless the RO closed the appeal
pursuant to 38 U.S.C.A. § 7105(d)(3) and 38 C.F.R. § 19.32
(2004), for failure to file a timely Substantive Appeal, that
failure did not automatically deprive the Board of
jurisdiction. Gonzales-Morales v. Principi, 16 Vet. App. 556
(2003). Accordingly, the case must be remanded to allow the
RO to initially address in writing whether the veteran filed
a timely Substantive Appeal, and thereby perfected an appeal
to these issues. If the RO determines that a timely
Substantive Appeal has not been filed, the RO should close
the appeal. In any event, and Gonzalez-Morales
notwithstanding, "questions as to timeliness or adequacy of
response [to a Statement of the Case] shall be determined by
the Board of Veterans' Appeals." 38 U.S.C.A. § 7105(d)(3)
(emphasis added).
Accordingly, this case is REMANDED to the RO for the
following actions:
1. Obtain all documents pertaining to an
award or denial of benefits from the
SSA, and associate these documents with
the claims folder. The SSA records
should include copies of the agency's
notice to the veteran of his award or
denial of disability benefits, as well
as the medical records upon which the
SSA based its decision.
2. Obtain all outpatient records
pertaining to the veteran's treatment
for his service-connected PTSD from VA
medical facilities affiliated with the
Connecticut HCS for the period from
February 1999 to January 2003, and for
the period since April 2004; and from
the Norwich Vet Center for the period
since October 2001. The RO should
associate this evidence with the claims
folder.
3. Ask the veteran to identify all VA
and non-VA health care providers that
have treated him for PTSD, the records
of which are not already on file. With
his authorization, obtain records from
each health care provider he identifies.
4. Thereafter, schedule the veteran for
a VA psychiatric examination to
determine the current severity of his
service-connected PTSD. The examination
should include a review of his pertinent
history and current complaints, as well
as a comprehensive clinical evaluation.
The examiner should assign a Global
Assessment of Functioning (GAF) score
and explain what the score means. The
claims file, including a copy of this
remand, must be made available for the
examiner's review of the veteran's
documented medical history.
The examination report should be
completely legible. If an examination
form is used to guide the examination,
the submitted examination report must
include the questions to which answers
are provided.
5. Thereafter, the RO should review the
claims file. If any development
is incomplete, the RO should take
corrective action before readjudication.
See Stegall v. West, 11 Vet. App. 268
(1998).
6. The RO should then readjudicate the
veteran's claims for an initial rating
in excess of 30 percent for PTSD for the
period prior to January 2, 2003, and for
a rating in excess of 70 percent for
PTSD for the period from January 2,
2003, in light of the additional
evidence obtained. If the claims are
not granted to his satisfaction, prepare
a supplemental SOC (SSOC) and send it to
him and his representative. Give them
time to respond before returning the
case to the Board for further appellate
consideration.
7. The RO should review documents filed
by the veteran since April 22, 2005, the
date the Statement of the Case was
mailed to him following his December
2004 Notice of Disagreement addressing
the issues of service connection for
asthma and heart problems, to determine
whether any document constitutes a
timely Substantive Appeal as to those
issues. If the RO determines that a
timely Substantive Appeal was not filed
with respect to these issues, the RO
should close the appeal with respect to
those issues, and document that action
in the claims file.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case and the period for submission of additional information
or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002)
has expired, if applicable, the case should be returned to
the Board for further appellate consideration, if otherwise
in order. By this remand, the Board intimates no opinion as
to any final outcome warranted. No action is required of the
veteran until he is notified by the RO. The veteran and his
representative have the right to submit additional evidence
and argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of the appeal. 38 C.F.R. § 20.1100(b)
(2004).